Standard Oil Co. of Louisiana v. United States

McClelland, Presiding Judge: We have here three protests each against the action of the collector of customs at the port of New [147] Orleans assessing a tax at the rate of one-half of 1 cent per gallon under the provisions of section 601 (c) (4) of the Revenue Act of 1932 on part of an importation of fuel oil which had been entered for warehouse. It is claimed in each of the protests that the oil in issue was withdrawn with the express purpose of being put on board of an American vessel engaged in foreign trade, and was therefore not subject to any duty or tax by virtue of section 630 of the Revenue Act of 1932. It is disclosed by the record made on the hearing of these protests that 2,722,110 gallons of fuel oil were imported into the port of New Orleans in the motorship Cleopatra on December 24, 1935, and that, among others, three withdrawals were made therefrom, one on December 30, 1935, of 316,968.86 gallons, of which 183,361.92 gallons were sold to the Mississippi Shipping Co. and supplied to the S. S. Delmundo, and two on January 6, 1936, of 281,293.32 and 140,511.42 gallons, respectively, of which a total of 253,080.24 gallons were sold to the Mississippi Shipping Co. and supplied to the S. S. Delmundo. Following these withdrawals and on February 18, 1936, the collector liquidated the entry, assessing a tax, as aforesaid, at the rate of one-half of 1 cent per gallon under the provisions of section 601 (c) (4) of the Revenue Act of 1932 on the entire quantity of oil imported. As to the oil covered by these withdrawals which was supplied to the S. S. Delmundo duty was not paid until after September 23, 1936, upon which day the collector addressed to the protestant the following notice: No, 44809 Notice op Duties Due United States Customs Service District No. 20 Port of New Orleans, La., Sept. 23, 1936 To Standard Oil Company of Louisiana New Orleans, La. There is due the United States, on W. H. entry No. 375, 12-26-35 liquidated 2-18-36 Supplemental duty_$6, 059. 13 Total_____ $6,059. 13 1 certify that this amount is correct. A. Miles Peatt, Collector of Customs. by (Sgd.) E. Bleist. The actual date of payment of such duties was October 23, 1936, more than eight months after the date of liquidation. On November 17, 1936, following such payments, each of these protests was filed [148] against the action of the collector, and when the protests came on to be heard at the port of New Orleans, Government counsel, preliminary to such hearing and at the close thereof, moved that each of the protests be dismissed on the ground that none of them was filed within the statutory time allowed therefor. The stenographic minutes do not disclose the attitude of plaintiff’s counsel on this motion. It is simply noted in the record following the motion made preliminary to the talcing of testimony that there was discussion off the record. The judge presiding denied the motion subject to the action of the full division having cognizance of the subject matter of the protests. Each of the protests contains the following: We hereby protest against your assessment, under the provisions of the Revenue Act of 1932, Section 601 (c) (4), as evidence by your notice of duties due No. 44809, dated September 23, 1936, of a tax of J40 per gallon on 183,361.92 [as the case may be] American measured gallons at 60° F. fuel oil supplied the American S/S “Delmundo” * * *. The inference from the foregoing is that it is the plaintiff’s view that the right of protest did not begin to run until the date on which the collector served or caused to be served on the plaintiff the notice referred to. This inference is supported by the argument in the brief of plaintiff’s counsel. Section 514 of the Tariff Act of 1930 provides: Except as provided in subdivision (b) of section 516 of this Act (relating io protests by American manufacturers, producers, and wholesalers), all decisions of the collector, including the legality of all orders and findings entering into the same, -as to the rate and amount of duties chargeable, and as to all exactions of whatever character (within the jurisdiction of the Secretary of the Treasury), and his decisions excluding any merchandise from entry or delivery, under any provision of the customs laws, and his liquidation or reliquidation of any entry, or refusal to pay any claim for drawback, or his refusal to reliquidate any entry for a clerical error discovered within one year after the date of entry, or within sixty days after liquidation or reliquidation when such liquidation or reliquidation is made more than ten months after the date of entry, shall, upon the expiration of sixty days after the date of such liquidation, reliquidation, decision, or refusal, be final and conclusive upon all persons (including the United States and any officer thereof), unless the importer, consignee, or agent of the person paying such charge or exaction, or filing such claim for drawback, or seeking such entry or delivery, shall, within sixty days after, but not before such liquidation, reliquidation, decision, or refusal, as the case may be, as well in cases of merchandise entered in bond as for consumption, file a protest in writing with the collector setting forth distinctly and specifically, and in respect to each entry, payment, claim, decision, or refusal, the reasons for the objection thereto. * * *. Plaintiff and its counsel elect to call the notice of duties due quoted supra a decision or exaction of the duties therein specified. This would appear to the writer to be- an unwarranted characterization. It has been so frequently decided that a collector of customs is not required to send notice of the amount of duties due as the result of the [149] liquidation of an entry that the citation of authorities is hardly necessary, and it has been held that if such notice be given, even if it contained a demand for payment, it is not to be considered such an exaction as to give the plaintiff the right to protest the same. See in this connection Scherk Importing Co. v. United States, 17 C. C. P. A. 135, T. D. 43470, in which the following excerpt from United States v. Andrews & Co., 14 Ct. Cust. Appls. 62, T. D. 41576, is quoted: The demand of the collector upon the importer for duties under date of September 5, 1922, was nothing more than a communication to the importer in the course of the administration of the business of the collector’s office and can not be (under the authority of the cases hereinbefore cited) taken as “exactions of whatever character,” as mentioned in said paragraph N. It is to be noted that in the case at bar the collector’s liquidation on February 18, 1936, took place after the withdrawal of the oil in question for the claimed purpose of supplying an American vessel engaged in the foreign trade, so that it must be presumed that the collector was in possession of all the facts necessary to a valid liquidation, át least so far as any claim under section 630, supra, is concerned. Manifestly, none of the protests was filed within the statutory period allowed therefor, and, having thus decided, it becomes unnecessary to pass upon the question of whether the S. S. Delmundo was or was not actually engaged in foreign trade. The motion to dismiss the protests is granted. Judgment will issue accordingly.